Why can’t same-sex cou­ples in Aus­tralia get married?

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In brief – Same-sex mar­riage is cur­rent­ly ille­gal in Australia

Same-sex mar­riage is cur­rent­ly ille­gal in Aus­tralia, which can result in same-sex cou­ples expe­ri­enc­ing dis­crim­i­na­tion. Recent changes in leg­is­la­tion mean that same-sex cou­ples qual­i­fy as de fac­to cou­ples and for the most part have the same fam­i­ly law rights as mar­ried cou­ples when rela­tion­ships break down.

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Legal­is­ing same-sex marriage

Equal­i­ty in mar­riage was the over­rid­ing theme of the annu­al Gay & Les­bian Mar­di Gras cel­e­bra­tion held in Syd­ney recent­ly, but what does it actu­al­ly mean from a legal per­spec­tive if same sex cou­ples are allowed to get married?

At present the Mar­riage Act defines mar­riage as between a man and woman, which excludes same-sex part­ners from being able to get mar­ried. Aus­tralia also does not recog­nise the valid­i­ty of over­seas same-sex mar­riages. Aus­tralian Mar­riage Equal­i­ty (AME) argues that this inequal­i­ty sends out the neg­a­tive mes­sage that there is some­thing sec­ond rate about the love and com­mit­ment between same-sex part­ners and rein­forces dis­crim­i­na­tion against them and their families.

At present, the offi­cial pol­i­cy of both major polit­i­cal par­ties in Aus­tralia is to oppose any amend­ment to the Mar­riage Act to allow same-sex cou­ples to marry.

Leg­isla­tive amend­ments and same-sex couples

In 2008, the Fam­i­ly Law Amend­ment (De Fac­to Finan­cial Mat­ters and Oth­er Mea­sures) Act 2008 (Cth), the Same-Sex Rela­tion­ships (Equal Treat­ment in Com­mon­wealth Laws — Super­an­nu­a­tion) Act 2008 (Cth) and the Same-Sex Rela­tion­ships (Equal Treat­ment in Com­mon­wealth Laws — Gen­er­al Law Reform) Act 2008 (Cth) amend­ed a total of 84 Com­mon­wealth acts to remove dif­fer­en­tial treat­ment of same-sex cou­ples and their chil­dren in the areas of tax, super­an­nu­a­tion, PBS and Medicare safe­ty nets, aged care, vet­er­ans’ enti­tle­ments, immi­gra­tion, evi­dence, child sup­port, social secu­ri­ty, work­ers com­pen­sa­tion enti­tle­ments and fam­i­ly law.

De fac­to cou­ples and fam­i­ly law

As a result of that leg­is­la­tion, same-sex de fac­to cou­ples in Aus­tralia have the same fam­i­ly law rights as oppo­site sex de fac­to cou­ples, pro­vid­ed the rela­tion­ship broke down after 1 March 2009. The new leg­is­la­tion cov­er­ing de fac­to cou­ples large­ly mir­rors the leg­is­la­tion applic­a­ble to mar­ried cou­ples. On the case law to date there does not seem to be any dif­fer­ence in approach between the law for mar­ried per­sons and those in a de fac­to relationship.

Many peo­ple (both same and oppo­site sex cou­ples) are not aware that their rela­tion­ship is a de fac­to rela­tion­ship and they do not realise that if their rela­tion­ship breaks down, they are eli­gi­ble to make an appli­ca­tion for finan­cial relief against their part­ner. If you think you may be liv­ing in a de fac­to rela­tion­ship, it would be pru­dent to seek advice and con­sid­er whether or not you should be enter­ing into some form of asset pro­tec­tion, for exam­ple a finan­cial agree­ment, to pro­tect your assets in the event of a break­down of your rela­tion­ship. (Please see our ear­li­er arti­cle Bind­ing finan­cial agree­ments – how they can pro­tect assets and why they can be set aside by the courts for more information.)

Same sex cou­ples and children

Same-sex part­ners are treat­ed the same as oppo­site sex cou­ples and mar­ried cou­ples in rela­tion to chil­dren’s issues in the Fam­i­ly Court. This was rein­forced recent­ly in a Fam­i­ly Court case involv­ing two les­bian par­ents. In that case the two women each had a bio­log­i­cal child to dif­fer­ent sperm donors dur­ing the course of their six-year rela­tion­ship. While they lived togeth­er as a fam­i­ly, the women both act­ed as par­ents to the two chil­dren, with the chil­dren call­ing one mum­my and the oth­er mumma.

The court refused one par­ent per­mis­sion to relo­cate inter­state with her bio­log­i­cal child, as this would have impact­ed on the child’s rela­tion­ship with the oth­er, non-bio­log­i­cal moth­er and sis­ter. Despite the ex-part­ner hav­ing no bio­log­i­cal link to the child, the court refused the appli­ca­tion that the bio­log­i­cal moth­er be grant­ed sole parental respon­si­bil­i­ty for the child and ordered that the two women have equal shared parental respon­si­bil­i­ty for the child.

Gov­ern­ment resis­tance to Mar­riage Act reform

With most of the major finan­cial and soci­etal dis­tinc­tions and dis­crim­i­na­tions removed by the recent leg­is­la­tion, many peo­ple are ques­tion­ing why the gov­ern­ment con­tin­ues to oppose same-sex mar­riage. In defend­ing her posi­tion, Prime Min­is­ter Julia Gillard has said that mar­riage should be between a man and a woman because Aus­trali­a’s laws are based on Chris­t­ian principles.

How­ev­er, it is dif­fi­cult to argue that oppos­ing same-sex mar­riage is appro­pri­ate on reli­gious grounds, as there is already a dis­tinc­tion between civ­il and reli­gious mar­riages. Today two thirds of Aus­tralian mar­riages are per­formed by civ­il celebrants.

The fight for change

It appears same-sex cou­ples will not have true equal­i­ty until the Mar­riage Act is amend­ed to allow them the same recog­ni­tion as oppo­site sex couples.

Clear­ly, this is like­ly to be a hot­ly con­test­ed issue in the polit­i­cal are­na for some time. Aus­tralia may be well on its way to achiev­ing mar­riage equal­i­ty as we speak. A par­lia­men­tary motion was passed in Novem­ber 2010 call­ing on all par­lia­men­tar­i­ans to gauge their con­stituents’ views on the issue of mar­riage equality.

AME reports that accord­ing to the most recent sta­tis­tics, 62% of all Aus­tralians believe that same-sex cou­ples should be allowed to mar­ry. If these sta­tis­tics are cor­rect, the major par­ties may be con­vinced to allow a con­science vote on the issue, which will allow the many mem­bers of par­lia­ment who per­son­al­ly sup­port this reform to vote for it.

For fur­ther infor­ma­tion, please con­tact our fam­i­ly law team.